November 15, 2011

Judge Michael D. Stallman of the Supreme Court of New York just issued a ruling denying Occupy Wall Street’s request for a temporary restraining order that would allow them to return, sleeping gear and all, to Zuccotti Park.

Two most interesting parts of the ruling, to us, are these. First, in a way, the judge sided with the protestors on their underlying message (emphasis ours):

It is undisputed that, since its inception on about September 17, 2011, Occupy Wall Street began occupying Zuccotti Park on a 24-hour basis for the demonstrations. Occupy Wall Street brought attention to the increasing disparity of wealth and power in the United States, largely because of the unorthodox tactic of occupying the subject public space on a 24-hour basis, and constructing an encampment there.

Ultimately, though, the judge did not buy that keeping the protestors from sleeping in Zuccotti Park kept them from exercising their First Amendment rights:

To the extent that City law prohibits the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places, enforcement of the law and the owner’s rules appears reasonable to permitthe owner to maintain its space in a hygienic, safe, and lawful condition, and to prevent itfrom being liable by the City or others for violations of law, or in tort It also permits public access by those who live and work in the area who are the intended beneficiaries of this zoning bonus. The movants have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion ofthe owner’s reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely. Neither have the applicants shown a right to a temporary restraining order that would restrict the City’s enforcement of law so as to promote public health and safety.

Our Nick Pinto is at 60 Centre Street where the order came down and will update. Below is Judge Stallman’s full order:

November 15, 2011 — In response to a ruling from the bench that denies protesters the ability to camp overnight in Zuccotti Park, New York Civil Liberties Union Executive Director Donna Lieberman issued the following statement:

“While we’re disappointed, it is important to remember that the First Amendment sets a floor – not a ceiling – for determining whether the government should accommodate free expression. There is no reason why the Bloomberg administration cannot embrace a more expansive understanding of freedom of speech and allow the protesters and their tents back into Zuccotti Park in a way that is consistent with public safety and health. It should immediately do so.

The New York Civil Liberties Union will be reviewing the decision and exploring our options on ways to proceed and protect the right to protest. The NYCLU remains deeply concerned about the NYPD’s heavy-handed tactics during the overnight eviction of the park. At least seven journalists have been arrested for doing their job. We will work to ensure that police are held accountable for any misconduct. With or without tents, the Occupy Wall Street protests will continue for some time, and we expect the NYPD to adapt its practices to accommodate protest.”

The NYCLU has protest monitors across Lower Manhattan, from Zuccotti Park to Duarte Square, and is monitoring the situation as it unfolds. Live updates are being posted on the NYCLU’s Twitter feed, twitter.com/nyclu. We’re also asking protesters to share their stories and experiences with police via email at protest@nyclu.org.